RAWIRI v NZ POLICE [2018] NZHC 1439

RAWIRI v NZ POLICE [2018] NZHC 1439 [14 June 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2018-409-000023[2018] NZHC 1439BETWEEN AROKA RAWIRIAppellantAND NEW ZEALAND POLICERespondentHearing: 14 June 2018Appearances: C G Nolan for AppellantC J Bernhardt for RespondentJudgment: 14 June 2018ORAL JUDGMENT OF GENDALL J[1] On 26 February 2018 Judge Saunders in the District Court sentenced theappellant Aroka Rawiri, along with a co-offender, to 13 months' imprisonment aftershe pleaded guilty to assault with intent to injure. This is to be served cumulativelyon the prison sentence of six years, 10 months the appellant is currently serving forkidnapping, aggravated burglary and robbery.[2] The appellant appeals the sentence imposed by Judge Saunders on the basisthat it is manifestly excessive.[3] A preliminary issue arises here. While this offending occurred at ChristchurchWomen's Prison, according to the Provision of Advice to Courts the appellantidentifies as a man. Mr Nolan, counsel for the appellant, however, indicated to me atthe outset of this hearing that for present purposes the appellant can be referred tousing "she" or "her" pronouns. This judgment will therefore proceed on the basis that"she" and "her" pronouns are used. No disrespect is intended by this.[4] Turning to the facts in this matter, the appellant, the co-offender and the victimwere all sentenced prisoners in Wing 1 at Christchurch Women's Prison. On15 November 2017, the appellant and her co-offender entered the Wing 1 courtyardand directly approached the victim. After some animated conversation, the appellantturned and punched the victim with some force while both were seated. The victimand the appellant traded blows until the co-offender pulled the victim by the hair intothe Unit lounge. The appellant then kneed and kicked the victim. This continued forsome time until the victim broke away. As the victim started to leave the lounge theco-offender punched the victim to the face and continued with a flurry of punches andkicks until other prisoners came to the victim's aid.[5] The victim declined to make a complaint or to discuss the incident with police.She presented the following day, however, with a headache, bruising on both cheeks,lumps on her forehead, injuries to the side of her neck and soreness all over her body.[6] Turning now to the District Court decision, Judge Saunders sentenced both theappellant and her co-offender at the same time. The maximum penalty for assault withintent to injure is three years' imprisonment. With reference to the aggravating featurewhich Judge Saunders said was attacks by way of kicks and punches to the head,His Honour adopted a mid-range starting point of 18 months' imprisonment.[7] Judge Saunders then considered imposing an uplift for the appellant's criminalhistory but declined to do so. His Honour expressed concern about the effect of anuplift on the time spent in custody, given both offenders are under strike warnings.[8] After then giving a full 25 per cent credit for their early guilty pleasJudge Saunders sentenced both the appellant and her co-offender to 13 months'imprisonment to be served cumulatively on their current sentences.[9] Turning now to the principles to be applied on appeal, appeals against sentenceare allowed as of right by s 244 of the Criminal Procedure Act 2011 and must bedetermined in accordance with s 250 of that Act. An appeal against sentence may onlybe allowed by this Court if it is satisfied that there has been an error in the impositionof the sentence and that a different sentence should be imposed and I refer to ss 250(2)and (3) of the Act.1 As the Court of Appeal stated in Tutakangahau,2 an appellateCourt will not intervene where the sentence is within the range that can be properlyjustified by accepted sentencing principles. It is only appropriate for this Court tointervene and substitute its own views if the sentence being appealed is manifestlyexcessive and not justified by the relevant sentencing principles.SubmissionsAppellant's submissions[10] Turning now to the appellant's submissions on this appeal, counsel for theappellant submits that the end sentence here is manifestly excessive as the startingpoint adopted was too high considering the circumstances of the offending and therelevant case law.[11] Before me, Mr Nolan, counsel for the appellant, submitted that Judge Saunderserred here in deeming punches and kicks to the head as an aggravating factor whenthe summary of facts on which the appellant's guilty plea was based did not includemention of this.[12] Counsel contends that as the injuries sustained by the victim turned out to berelatively minor and the offending was not prolonged, the seriousness of the attack didnot justify the sentence imposed.[13] There is no guideline judgment for assault with intent to injure. Counselreferred me to a number of cases with similar facts to contrast the starting point of 18months' imprisonment adopted here.1 Criminal Procedure Act 2011 ss 250(2) and 250(3).2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].[14] In Taingahue v Police,3 a Court of Appeal decision of 2014, Mr Taingahuepunched his wife in the face while she was sitting in their car. She turned away andhe punched her three or four more times in the back of the head before grabbing herby the hair and punching her several more times in the face. She got out of the car buthe grabbed her by the hair again and pulled her to the ground before she managed toescape. The victim suffered cuts around the nose and eyes, a broken tooth, a sore neckand head pain. On appeal, the High Court substituted a starting point of 18 months'imprisonment with one of 12 months.[15] The next authority referred to me, Te Whata v Police,4 involved a situationwhere Mr Te Whata got into a drunken argument with an associate. The other manwent to leave but was brought to the ground by Mr Te Whata striking him with a stiffarm. Standing over the victim, Mr Te Whata said "If I go down I'm going to kill you."He pulled the victim's jersey over his head and began kicking him about the head. Hekicked him approximately 10 times before the victim escaped and contacted police.The victim suffered a broken nose. The High Court decreased the starting point forthis offending from two years, six months to 15 months' imprisonment.[16] In Finiki v Police,5 a 2011 High Court decision, Mr Finiki assaulted his formerpartner while they were both in a car by punching her three or four times to the faceand head area. The victim sustained a black eye, a possible broken nose and fourchipped and broken teeth. The High Court, on appeal, rejected a starting point of 18months' imprisonment and substituted one of 15 months' imprisonment.[17] With these decisions in mind, accordingly, counsel for the appellant before mesubmitted that an appropriate starting point for the offending at hand is in the range ofonly 10 to 12 months' imprisonment. After applying the appellant's guilty plea anappropriate final sentence, according to Mr Nolan, would be a term of eight to 10months' imprisonment.3 Taingahue v Police HC Wellington CRI-2009-485-75, 17 August 2009.4 Te Whata v Police HC Auckland CRI-2011-404-135, 1 August 2011.5 Finiki v Police HC Christchurch CRI-2011-409-38, 3 June 2011.Respondent's submissions[18] Turning now to the respondent's submissions advanced before me,Mr Bernhardt, for the Crown, submits in response, that the Judge was entitled to takeattacks to the head as an aggravating feature of the offending here, even though itseems these were meted out by the appellant's co-offender. Moreover, Mr Nolan saysthat Judge Saunders could have taken the fact that these incidents involved multipleattackers into account. Thus, the starting point he suggests was, in fact, a generousone.[19] Counsel for the respondent referred to a 2013 High Court decision Mori vPolice.6 In that case Ms Mori and her co-offender had been out drinking and on theway home made an unprovoked attack on a middle-aged woman they did not know.The co-offender began the attack and Ms Mori joined in, hitting the victim in the headand later punching her and kicking her until she fell to the ground. The victim wasparticularly vulnerable as she had recently had surgery. She suffered extensivebruising and abrasions and was traumatised by the attack. A starting point of18 months' imprisonment was upheld by the High Court on appeal.[20] Counsel also referred to Kojeunikov v Police,7 a 2013 High Court decision. Inthat case Mr Kojeunikov had a verbal altercation with someone he knew in the parkinglot of a shopping centre. The altercation escalated to Mr Kojeunikov punching thevictim in the head, knocking him to the ground and then kicking him. The injurieswere minor, including swelling and minor abrasions to the forehead. The High Courtheld the appropriate starting point was 12 months' imprisonment.[21] Before me, Mr Bernhardt submitted that the offending in the instant case wasmost similar to that which occurred in Mori.8 He suggested it was prolonged andinvolved multiple offenders. As such, Mr Bernhardt contended that no issue can betaken with the 18 months starting point.6 Mori v Police [2013] NZHC 225.7 Kojeunikov v Police [2013] NZHC 551.8 Mori v Police, above n 6.[22] Counsel further suggested that Judge Saunders would have been entitled touplift the sentence for aggravating features personal to the appellant but was generousin deciding not to do so. The appellant does have a number of previous violentconvictions and an uplift would have been warranted, given that she was subject tosentence at the time, according to Mr Bernhardt. The Judge was therefore lenient innot uplifting the sentence further.[23] Finally, the Crown position is that the Judge was correct in not providing anyfurther discount for totality. Where an offender is serving a sentence for separateserious offending, the application of the totality principle to the cumulative termimposed on serious offending while in prison is limited. And on that he referred meto the decision in R v Connelly.9[24] Overall, the Crown position on this appeal, therefore, was that the end sentenceimposed by Judge Saunders was within range and could not be regarded as manifestlyexcessive.Analysis[25] Turning now to my analysis in this matter, the appellant's submissions give riseto two main arguments. The first, is that the Judge was wrong to treat both co-offenders here alike when sentencing them and, the second, is that the appellant'ssentence was manifestly excessive compared with similar cases.[26] In his decision in the District Court Judge Saunders applied his judgmentequally to both offenders. The appellant's major submission appears to be that,because the summary of facts only references the appellant's co-offender as strikingthe victim to the head and not the appellant, attacks to the head should not have beenan aggravating factor in the appellant's offending. The appellant relied, too, on thatsummary of facts when she made her decision to plead guilty. Thus, the two co-offenders, it is said, should have been dealt with separately. In my view, there issubstance in this argument.9 R v Connelly [2010] NZCA 52.[27] Next, I note particularly that the summary of facts does not specify where onher body the appellant struck the victim. It records that the appellant punched thevictim with a forceful right punch, traded blows with the victim and later kneed andkicked the victim. However, the two co-offenders were clearly working together witha common purpose. The appellant does not appear to have made any attempt to stopher co-offender when she began attacking the victim's head and face. Without aclearer delineation in roles between the two co-offenders it is arguable that it is notappropriate to allow the appellant a more lenient sentence on only a strict reading ofthe summary of facts. However, in my view, this argument is a finely balanced one.[28] Turning to the second point at issue, which is whether the starting pointadopted by Judge Saunders was too high relative to other decisions of this and othercourts, it does appear to me that the 18 months' starting point adopted is at the upperend of the spectrum here for similar offending. The injuries sustained by the victim inthis case were relatively minor in the overall scheme of things. While the actualinjuries sustained are not determinative of the gravity of an offence, they are importantin determining the level of violence involved, and I refer to Kojeunikov10 with respectto that.[29] Only one of the cases referred to me by counsel here appeared to involvemultiple offenders. This was Mori11 in which an 18 months starting point was upheld.However, whether a wholly unprovoked violent attack on a vulnerable stranger in themiddle of the night is equivalent to a fight between inmates, in my view, is somewhatquestionable. The Court of Appeal held in Tryselaar v R,12 a 2012 decision:Offending in the prison environment, particularly where that offending goesto the maintenance of the discipline needed to effectively manage a penalinstitution, demands a stern response.[30] Notwithstanding this, however, I remain to be convinced that the assault heredemands the same level of reprobation as the offending in Mori did. I see the offendinghere in a more similar class to that which occurred in Taingahue.13 An extended family10 Kojeunikov v Police, above n 7.11 Mori v Police, above n 6.12 Tryselaar v R [2012] NZCA 353 at [18].13 Taingahue v Police, above n 3.violence attack focused on the head with slightly more serious injuries might be seenas having either a similar or perhaps even a more serious level of aggravating featuresas an extended prison attack with two co-offenders. Comparisons in this area arealways difficult, however.[31] Nevertheless, as such I consider that in this case a starting point of 12 months'imprisonment would have been appropriate. Although perhaps this is at the lower endof the available range, in my view, the learned District Court Judge erred by notadopting a starting point at this level. With a full 25 per cent credit for the early guiltyplea, that would take the final sentence to one of nine months' imprisonment.[32] With that said, it is true that it was open for the Judge to uplift the starting pointfor the appellant's offending history, which he did not do. Judge Saunders gave hisreason for not doing so as "both of [the offenders] are under strike warnings and thatwill have some impact, I believe, on the time you spend in custody". Although thiswas perhaps generous in the circumstances here, I am satisfied that no uplifting foroffending history is necessarily required.[33] There was no challenge to Judge Saunders' decision for this sentence to beserved cumulatively on the appellant's existing sentence.Conclusion[34] In conclusion, I hold that this appeal therefore must be allowed. This is onlyon the basis that the starting point was too high with regard to comparable cases. Thefinal sentence imposed in the District Court of 13 months' imprisonment is quashed.A sentence of nine months' imprisonment to be served cumulatively on the appellant'sexisting sentence is imposed in its place....................................................Gendall JSolicitors:Anselm Williams, Barrister, ChristchurchRaymond Donnelly & Co, Christchurch